This case presents us with a constitutional challenge to the validity of a City of Philadelphia (City) ordinance enacted in 1961 (1961 Ordinance) and of section 2003 of the Public Employe Relations Act (PERA), *fn1 which, by saving the 1961 Ordinance, authorizes the City to recognize the American Federation of State, County and Municipal Employees, District Council 33, A.F.L.-C.I.O. (AFSCME or District Council 33) as the exclusive bargaining representative for City correctional employees for purposes of collective bargaining between those employees and the City.

On December 16, 1996, the Philadelphia Fraternal Order of Correctional Officers (PFOCO) and its members, Lorenzo North, Barbara Sturgis, Preston Corley, Melvin Carr, Cheryl Glenn, Dominique Mackey, David Weaver, and William Dougherty (collectively, Petitioners), *fn2 filed a Verified Amended Complaint and Petition for Review (Complaint/Petition) against Edward G. Rendell, in his official capacity of Mayor of the City, and the City (together, City Defendants), and against Tom Ridge, in his official capacity as Governor of the Commonwealth of Pennsylvania, the Commonwealth, the Pennsylvania Labor Relations Board (PLRB), and L. Dennis Martire, John Markle, Jr. and Edward Feehan, in their official capacities as members of the PLRB (collectively, Commonwealth Defendants). *fn3 In the Complaint/Petition, Petitioners set forth an original action for declaratory, injunctive and compensatory relief, challenging the 1961 Ordinance and section 2003 of PERA on the grounds that they infringe on Petitioners' rights of association and deprive Petitioners of equal protection under the law. Additionally, Petitioners invoke this court's appellate jurisdiction, seeking to have this court set aside a PLRB order dismissing PFOCO's representation petition.

Petitioners claim that, by force of law, the individual Petitioners and other City correctional employees represented by District Council 33 and its affiliate AFSCME Local 159 have been, and continue to be, prohibited from freely choosing the labor organization to act as their collective voice in matters of labor relations with the City. Further, Petitioners allege that, unless the City and Commonwealth Defendants are prevented from enforcing the provisions of the 1961 Ordinance and section 2003 of PERA, City correctional employees will continue to be deprived of their right to freely elect the employee organization of their choice, and PFOCO will continue to be deprived of its right to be fairly elected as the exclusive bargaining agent of the City correctional officers. (Complaint/Petition, paras. 45-46.) To this end, the Complaint/Petition challenges the constitutionality of the 1961 Ordinance and section 2003 of PERA, setting forth three counts for relief.

In Count One, raised against both the City Defendants and the Commonwealth Defendants, Petitioners assert that the 1961 Ordinance, section 2003 of PERA and the final order of the PLRB violate Petitioners' fundamental right of association without compelling justification, in contravention of Article I, section 7 of the Constitution of the Commonwealth of Pennsylvania. (Complaint/Petition, para. 48.) In Count Two, raised against the Commonwealth Defendants, Petitioners assert that the 1961 Ordinance, section 2003 of PERA and the final order of the PLRB deny Petitioners the right to freely choose their employee organization, in violation of PERA, and violate Petitioners' rights to equal protection under the law without compelling justification, in contravention of Article I, sections 1 and 26 of the Constitution of the Commonwealth of Pennsylvania. (Complaint/Petition, para. 50.) In Count Three, raised against the PLRB and individual Defendants Martire, Markle and Feehan, Petitioners allege that the final order of the PLRB is erroneous, contrary to law, in violation of the Pennsylvania Constitution and against the clear and substantial weight of the evidence. (Complaint/Petition, para. 52.)

Based on these allegations, Petitioners request that this court: (A) enter an order declaring the 1961 Ordinance and section 2003 of PERA to be in violation of the Constitution of the Commonwealth of Pennsylvania; (B) enter an order restraining Defendants from enforcing, complying with or applying the 1961 ordinance and section 2003 of PERA as a bar to any other employee organization becoming the exclusive bargaining agent for City employees, in accordance with the relevant provisions of PERA governing representation petitions and elections; (C) enter an order setting aside the final order of the PLRB and directing the PLRB to conduct an election among the members of the bargaining unit as defined in the Petition for Representation Election; (D) award Petitioners any money damages that they have incurred as a result of the Defendants' unlawful policies; (E) award Petitioners their costs and disbursement in this action, including reasonable attorney's fees; and (F) grant such other relief as is appropriate and equitable.

The City Defendants filed preliminary objections to Count One of the Complaint/Petition, and the Commonwealth Defendants filed preliminary objections to Counts One and Two of the Complaint/Petition. In addition, AFSCME, which was granted intervenor status, filed a motion for summary relief, seeking dismissal of the entire action. Petitioners filed a consolidated response to the City Defendant's preliminary objections and to AFSCME's motion for summary relief and also filed a cross-motion for summary relief. Both sets of preliminary objections and the cross-motions for summary relief were consolidated for argument before this court and are now before us for Disposition.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioners have sought previously to have the 1961 Ordinance, as saved by section 2003 of PERA, declared unconstitutional. See Philadelphia Fraternal Order of Correctional Officers v. Rendell, No. 96-1834, 1996 U.S. Dist. LEXIS 7621, (E.D. Pa. May 31, 1996, as amended, August 14, 1996), ("the federal action"). In March 1996, Petitioners filed the federal action in the United States District Court for the Eastern District of Pennsylvania, naming as defendants the identical parties named as Defendants in the present case, and alleged that the courts' construction of the 1961 Ordinance and section 2003 of PERA violated Petitioners' right of association under the First Amendment to the United States Constitution (Count I), their right to equal protection under the Fourteenth Amendment to the United States Constitution (Count II), and their right to equal protection under Article I, sections 1 and 26 of the Pennsylvania Constitution (Count III). As in the present case, Petitioners sought declaratory, injunctive and compensatory relief based on these allegations. However, by order dated May 31, 1996, the district court granted the City Defendants' and Commonwealth Defendants' motions for summary judgment on each count of Petitioners' complaint. First, the district court rejected Petitioners' First Amendment claim, holding that there is no constitutionally protected right to choose a collective bargaining agent. (LEXIS 7621 at 25.) The court then rejected Petitioners' federal equal protection claim; determining that Petitioners' complaint involved neither a suspect class nor any fundamental rights, the court evaluated Petitioners' claim under the "rational relationship" test and concluded that the purposes set forth in the preamble to the 1961 Ordinance constituted legitimate government interests sufficient to meet that standard. (LEXIS 7621 at 34, 40.) Applying the same analysis to Petitioners' state equal protection claim, the district court also found no violation of the Pennsylvania Constitution.

Following the issuance of this decision, Petitioners filed a motion to alter and amend judgment. Petitioners contended that, by virtue of the Eleventh Amendment, the district court lacked subject matter jurisdiction to consider Petitioners' state constitutional claims against the Commonwealth Defendants once it had dismissed the federal constitutional claims; Petitioners also urged the district court to exercise its discretion to dismiss the state law claims against the City Defendants. The district court agreed in part and, in an amended decision, dismissed the state law claims against the Commonwealth Defendants without prejudice. However, the district court denied Petitioners' motion with respect to the City Defendants, rendering that judgment final. An appeal of the district court's decision is now pending before the United States Court of Appeals for the Third Circuit.

In the previous federal action, the parties submitted a Stipulation of Undisputed Facts, a copy of which has also been provided as part of the record to this court. Our recitation of facts is drawn from that stipulation together with relevant allegations from Petitioners' Complaint/Petition.

On April 4, 1961, Richardson Dilworth, then-Mayor of the City, signed into law the 1961 Ordinance entitled: "To authorize the Mayor to enter into an Agreement with District Council 33, American Federation of State, County, and Municipal Employees, A.F.L.-C.I.O., Philadelphia and Vicinity, regarding its representation of certain City employees." (Complaint/Petition, para. 15; Stipulation of Facts, No. 9.) The effect of the 1961 Ordinance, which still remains in effect as amended, was to codify under color of law the status of District Council 33 as the exclusive bargaining agent for the City's Civil Service employees. *fn4 Pursuant to the recognition conferred on District Council 33 by the 1961 Ordinance, the City and District Council 33 have entered a continuous series of written contracts, the most recent of which has been in force since July 1, 1996 and is due to expire on June 30, 2000. (Complaint/Petition, paras. 16-17.)

On July 23, 1970, the Governor of Pennsylvania signed PERA into law. Under section 603 of PERA, 43 P.S. § 1101.603, a group of public employees who wish to remove an employee organization as their exclusive bargaining representative may file a rival representation petition with the PLRB. If the election conducted pursuant to this representation petition results in the rival organization's selection as representative, the new organization replaces the former organization as the employees' bargaining representative. (Complaint/Petition, para. 22.) However, section 2003 of PERA saved the 1961 Ordinance insofar as it is inconsistent with PERA provisions that otherwise would give the PLRB jurisdiction to entertain a representation petition and conduct a representation election among employees covered by the 1961 Ordinance. Section 2003 of PERA provides:

Present provisions of an ordinance of the City of Philadelphia approved April 4, 1961, entitled 'An Ordinance to authorize the Mayor to enter into an agreement with District Council 33, American Federation of State, County and Municipal Employes, A.F.L.-C.I.O., Philadelphia and vicinity regarding its representation of certain City Employes,' which are inconsistent with the provisions of this act shall remain in full force and effect so long as the present provisions of that ordinance are valid and operative.

43 P.S. § 1101.2003.

This court interpreted this statutory savings provision in Employees of the City of Philadelphia v. Pennsylvania Labor Relations Board, 23 Pa. Commw. 233, 350 A.2d 923 (Pa. Commw. 1976), petition for allowance of appeal denied, No. 2390 Allocatur Dkt. 1976 (Pa., filed May 25, 1976) (Deputy Sheriff's Case), holding that the PLRB lacked jurisdiction to consider a representation petition filed under PERA by a rival union seeking to represent City Deputy Sheriffs covered by the 1961 Ordinance. We determined that such employees could not change their exclusive bargaining representative by filing a petition for representation, as expressly provided for by PERA, because the 1961 Ordinance, as saved by section 2003 of PERA, acts as an absolute bar on those City employees' rights to select the labor organization of their choice for collective bargaining purposes. (Complaint/Petition, paras. 19-21.) Based on the Deputy Sheriff's Case, the PLRB consistently has refused to entertain representation petitions filed with respect to employees who fall within the scope of the 1961 Ordinance. *fn5 (Complaint/Petition, para. 23; Stipulation of Fact, No. 11.)

Mounting dissatisfaction with the level of representation by District Council 33 and its affiliate Local 159 led, in 1995, to the creation of PFOCO, and within only a few months, PFOCO had secured the support of a majority of the rank and file members of the bargaining unit. *fn6 (Complaint/Petition, paras. 31-33; Stipulation of Facts, No. 14.) On April 29, 1996, *fn7 PFOCO filed a petition for a representation election with the PLRB *fn8 and submitted authorization cards signed by well over a majority of the members of the bargaining unit currently represented by AFSCME Local 159. (Complaint/Petition, para. 39.)

On May 3, 1996, the Secretary of the PLRB issued a decision declining to direct a hearing on PFOCO's representation petition on the grounds that the PLRB lacked jurisdiction over the petition by virtue of the 1961 Ordinance referred to in section 2003 of PERA. PFOCO filed exceptions to the Secretary's determination, contending that the PLRB's and the courts' construction of the 1961 Ordinance and section 2003 of PERA violates the subject employees' right of association and equal protection under both the United States and Pennsylvania Constitutions. On October 8, 1996, the PLRB issued an order dismissing PFOCO's exceptions and rendering the decision of the Secretary absolute and final. (Complaint/Petition, paras. 40-41, Exhibits E and F.) In doing so, the PLRB relied upon the decision rendered in Petitioners' prior federal action, in which the district court rejected Petitioners' claim that the 1961 Ordinance and section 2003 of PERA violated its members' right of association under the First Amendment to the United States Constitution and their right to equal protection under both the Fourteenth Amendment of the United States Constitution and the equal protection provisions of Article I, sections 1 and 26 of the Pennsylvania Constitution.

Having provided the necessary background, we now address the matters before us.

PRELIMINARY OBJECTIONS - CITY DEFENDANTS

In their preliminary objections, the City Defendants assert that the doctrine of res judicata bars Petitioners' freedom of association claim set forth in Count One of the Complaint/Petition, the only count brought against the City Defendants.

Before we determine whether res judicata applies here, however, we will consider Petitioners' contention that City Defendants' res judicata challenge must be stricken because it was improperly raised in the form of a preliminary objection rather than pleaded in a responsive pleading as "New Matter." Pa. R.C.P. No. 1030(a). As a general rule, res judicata is an affirmative defense and should be pleaded as new matter; however, the proper method for challenging the procedural propriety of another party's preliminary objections raising res judicata is by filing preliminary objections to the challenged preliminary objections. Because Petitioners here did not file preliminary objections challenging the method the City Defendants used to assert res judicata, the challenge to that defect is deemed waived. See Pa. R.C.P. No. 1032(a); Corbett v. Desiderio, 698 A.2d 134 (1997); Bradford County Citizens in Action v. Board of Commissioners of Bradford County, 64 Pa. Commw. 349, 439 A.2d 1346 (Pa. Commw. 1982); Swartz v. Masloff, 62 Pa. Commw. 522, 437 A.2d 472 (Pa. Commw. 1981).

Having determined that we can consider the City Defendants' preliminary objections, we next decide whether the doctrine of res judicata is applicable here. Under Pennsylvania law, the doctrine of res judicata provides that a final valid judgment on the merits by a court of competent jurisdiction precludes any future action between the parties and their privies on the same cause of action. Dempsey v. Cessna Aircraft Co., 439 Pa. Super. 172, 653 A.2d 679 (1995), appeal denied, 541 Pa. 631, 663 A.2d 684 (1995); Malone v. West Marlborough Township Board of Supervisors, 145 Pa. Commw. 466, 603 A.2d 708 (Pa. Commw. 1992). A judgment is deemed final for purposes of res judicata or collateral estoppel unless or until it is reversed on appeal. Shaffer v. Smith, 543 Pa. 526, 673 A.2d 872 (1996); Philadelphia Electric Co. v. Pennsylvania Public Utility Commission, 61 Pa. Commw. 325, 433 A.2d 620 (Pa. Commw. 1981). For res judicata to apply, the prior and present cases must share four "identities": (1) identity of the thing sued upon or for; (2) identity of the cause of action; (3) identity of the parties; and (4) identity of the capacity of the parties to sue or be sued. Dempsey ; Mason v. Workmen's Compensation Appeal Board (Hilti Fastening Systems Corp.), 657 A.2d 1020 (Pa. Commw. 1995), appeal denied, 542 Pa. 679, 668 A.2d 1140 (1995); Miller v. Commonwealth, 111 Pa. Commw. 240, 533 A.2d 819 (Pa. Commw. 1987). Further, res judicata bars subsequent litigation not only of issues litigated in the first proceeding but also issues which should have been previously litigated, if they were part of the same cause of action. Commonwealth ex rel. Bloomsburg State College v. Porter, 148 Pa. Commw. 188, 610 A.2d 516, 520 (Pa. Commw. 1992), appeal denied, 534 Pa. 650, 627 A.2d 181 (1992). Causes of action may be considered identical when, in both the current and prior proceedings, the subject matter and the ultimate issues are the same. Miller.

In the federal action, the district court rejected Petitioners' First Amendment claim and held that there is no constitutionally protected right to choose a collective bargaining agent. The City Defendants assert that Petitioners' freedom of association claim set forth in Count One of the Complaint/Petition involves the identical parties, is based on identical factual averments, and raises the same basic legal issue as the allegation made by Petitioners in Count I of the federal action. The only difference between the two actions is that, in the present action, Petitioners have asserted a violation of associational rights as protected by the state, rather than the federal, constitution. Thus, because the claim against the City set forth in Count One of the Complaint/Petition could have, and should have, been brought in the federal action, that count should be dismissed. We agree.

Count Two of the Complaint/Petition asserts the same equal protection claim under the Pennsylvania Constitution that Petitioners raised previously in Count III of the complaint in the prior federal action. Moreover, that state equal protection claim is necessarily premised, at least in part, upon Petitioners' claim that the 1961 Ordinance, as saved by section 2003 of PERA, deprives them of their constitutional rights to freedom of association. Thus, it is clear that Petitioners' cause of action in the prior federal litigation encompassed alleged deprivations of their rights under both the federal and state constitutions. Because, in the federal action, Petitioners chose to assert a violation of both state and federal equal protection rights, and in view of the fact that they asserted a violation of associational rights under the First Amendment, Petitioners clearly could, and should, have raised their freedom of association claim under the Pennsylvania Constitution in the federal action as well.

Petitioners concede that three of the four identities required for res judicata are present here, but contend that, because the identity of cause of action is missing, res judicata cannot be applied. Petitioners maintain that their suit in federal court, in which they sought to vindicate their rights under the federal constitution pursuant to section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (1988), is a cause of action which has been recognized as separate and distinct from any state law causes of action that may arise from the same set of facts. Petitioners then go on to cite numerous cases standing for the proposition that federal and state constitutional claims may be deemed separate causes of action and, thus, may be brought in separate actions in federal and state courts. However, we are not swayed by Petitioners' argument. Even if state and federal causes of action may, or possibly should, be brought as separate actions, the fact remains that ...

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